Wetlands protection

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 859-956

859

CHAPTER XII:

WETL ANDS PROTECTION

A. THE IMPORTANCE OF WETLA NDS

In the past there was little recognition on the part of the American public

of the existence, let alone the importance, of wetla nds. e swamps, bogs,

and marshes that are t he most prominent of these natural areas were gener-

ally considered nuisances—rife with mosquitoes and other potential threats

to hea lth. e passage of the Swamp Land Acts of 1849, 1850, and 1860

reected a nationa l tradition of lling and d raining swamplands to turn

them into “productive” land. roughout most of the 20th century, wetlands

were likewise deemed without economic value and, therefore, best suited

to be turned into shopping centers, parking lots, residential developments,

and land lls. Our propensity to “improve” land extends to tidal, as well as

freshwater, wetlands. Currently, the U.S. coastal fringe—only 17% of total

contiguous land area—is home to more than 53% of the U.S. population. See

U.S. EPA, N C C R IV, at 1-3 (2012) (EPA-

842-R-10-003), http://water.epa.gov/type/oceb/assessmonitor/nccr/upload/

NCCR4-Report.pdf. Many of our coasta l cities have extensive commercial

and residential development located on former wetlands and much of Florida

has been recongured through dredge and ll projects. Widespread recogni-

tion of the importa nce of wetlands rst came about because of the impact

of their loss on wildlife. Many A mericans, if asked about wetlands, can now

say that they are important for birds and sh; so much so that the surest way

to identify organizations involved in wetlands protection is to look for let-

terheads sporting a bird in a marsh. Even industry-funded organizations that

generally seek to weaken wetla nds regulation employ such symbolism.

More recently policymakers and the public began to recognize other criti-

cal functions of wetla nds. For exa mple, wetlands lter runo, thus protect-

ing water quality and perhaps avoiding the necessity for expensive wastewater

treatment. Even if they have no surface connection to rivers a nd streams,

wetlands may replenish groundwater, thus maintaining stream ow and pre-

venting droughts. ey also protect against ooding, acting as giant sponges

to mitigate the force of oodwaters, trapping and slowly releasing them, as

well as spreading them out over the oodplain. Specically, recurrent oods

along the Mississippi River, whose wetland buers have been largely elimi-

860 Water Pollution Control, 2d Edition

nated, demonstrate the havoc wrought by wet weather events when a stream

or river’s natural wetlands have been destroyed. Even if wetlands are not

drained and lled, they may be damaged by agricultural and urban runo

that contains sediment, toxins, and excess nutrients.

Similarly, coastal wetlands are critical in buering wave action and pro-

tecting inland areas from storms. e destruction wrought on the Gulf

Coast in 2005 by Hurricanes K atrina and Rita and on the East Coa st by

Hurricanes Irene and Sandy in 2011 and 2012 was exacerbated by the exten-

sive loss of buering wetlands. But population pressure on coastal regions

has grown substantially, and as coa sts are hardened with bulkheads and

other construction, their wetlands are destroyed. e U.S. Environmental

Protection Agency (EPA) has e stimated that the existing population pres-

sure on coastal ecosystems will continue, with 3,60 0 people moving to t he

coast every day, and National Oceanic and Atmospheric Administration

(NOAA) projects that coastal population will reach almost 135 million by

2020. U.S. EPA, N  C C  R III, at 2 (2004)

(EPA-620-R-03-002, http://water.epa.gov/type/oceb/upload/2005_1_12_

oceans_nccr_2005_Chapt1_Intro.pdf; NOAA, State of the Coast, http://

stateofthecoast.noaa.gov/population/welcome.html. Climate change com-

plicates matters because as sea levels continue to rise, development along the

coast prevents wetlands from naturally regressing inland.

Since the time of European settlement, the lower 48 states have lost over

one-half of their origina l 221 million acres of wetlands. T E.

D,

U.S.

D’    I  (DOI), S   T  W 

  C  U  S: 1986 

1997, at 9 (2000), http://

www.fw s.gov/wetlands/Documents/Status-and-Trends-of-Wetlands-in-the-

Conterminous-United-States-1986-to-1997.pdf. In 2009, the contermi-

nous United States contained an e stimated 110.1 million acres of wet lands,

U.S. EPA, Wetlands Status and Trends, http://water.epa.gov/type/wetlands/

vital_status.cfm, the bulk of which a re freshwater wetlands. In some a reas,

wetlands loss is especia lly severe. By the end of the la st century San Fran-

cisco Bay, for example, reta ined only 5% of its historical wetla nds and even

those were threatened. D. J R. D

,

U.S. G S ,

C W  S    S F B S

(1996). is “staggering loss results almost wholly from human activity,”

including hydraulic mining, agriculture, and urbanization. Id. Although the

rate of wetlands loss has decreased and despite President George H.W. Bush’s

1989 stated policy goal of “no net loss of wetlands,” see, e.g., N P

S., U.S. DOI, D’ O #77-1: W P  (2002),

Wetlands Protection 861

the United States lost an estimated 58,500 acres of wetlands per year f rom

1986 through 1997, D

,

supra. is was an a larming rate even before the

2001 U.S. Supreme Court decision invalidating the U.S. Army Corps of

Engineers’ (the Corps’) regulation of “isolated” wet lands, which increased

the possibility for substantially greater wetland loss. See Solid Waste Agency of

N. Cook County v. Corps of Eng’rs (SWANCC), 531 U.S. at 159. In the wake

of SWANCC, the C orps, which administers the Clean Water Act’s (CWA’s)

wetlands permitting process, has been selectively conservative in providing

protection to all but the most “obvious” wetlands. See, e.g., U.S. A  C

 E’, R  G L No. 01-1 (2001). Another of the

Court’s more recent wetlands decisions, Rapanos v. United States, 547 U.S. at

715 caused the Corps to revise its wetlands guidance. See EPA & U.S.

Army

Corps of Eng’rs, Memorandum, Clean Water Act Jurisdiction Following the

U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United

States (Dec. 2, 2008), http://www.usace.army.mil/Portals/2/docs/civilworks/

regulatory/cwa_guide/cwa_juris_2dec08.pdf. See discussion in Chapter I V.

e full impact of Rapanos on wetlands protection is still unclear, see T

E. D, U.S. DOI, S   T  W   C-

 U S: 2004 to 2009, at 15-18 (2011), available at http://

www.fw s.gov/wetlands/Documents/Status-and-Trends-of-Wetlands-in-the-

Conterminous-United-States-2004-to-2009.pdf. Justice Anthony Kennedy’s

concurrence in this plurality opinion holds that t he Corps’ jurisdiction over

wetlands depends upon the existence of a signicant nexus between the wet-

lands in question and navig able waters in the traditional sense. See Rapanos

(Kennedy, J., concurring). EPA and the Corps were still developing reg ula-

tory guidance at the beginning of 2015. Whether Rapanos will also have an

impact on other CWA programs is similarly unclear.

e legal controversy over wetla nds is based, in part, on the ecosystems’

variability. First, wetlands provide important environmental functions that

traditionally have been unrecognized or ignored. ese functions include,

inter alia, ood and erosion control, habitat for sa lt and freshwater organ-

isms, and groundwater ltration. ese services are not only provided by

healthy systems, but also by degraded, “isolated,” and seasonal wetlands. For

example, California’s vernal pools are dry except during the spring, when

they provide irreplaceable habitat for breeding frogs and other wildlife. Sec-

ond, wetland functions are d icult to qua ntify in economic terms. It is far

easier to ca lculate the rea l estate value of a piece of shoreline property, than

it is to determine the dollar value of a wildlife habitat, drinking water lter,

or storm buer. Yet wetla nds are key to a $199 bil lion sheries economy

and 1.7 million jobs depend on them. See NOAA, Fisheries Economics of the